Limited Government

I never in my wildest dreams thought I’d ever be pleased by anything that Jerry Brown, aka Governor “Moonbeam” of California, did, but I am now. I never thought the leftists in Seattle and Chicago would give me reason to cheer them on, but they have.

No, I’ve not lost my constitutional moorings. Democrats have been for more and more expansive government intrusion into our rights and constricting our freedom and liberties, and by and large they still are. However, recent (and some not so recent) actions taken in these local areas has given me reason to cheer.

Two weeks ago, Governor “Moonbeam” announced that the state of California would embrace and abide by the so-called Paris Climate Accords even though President Trump pulled the US out of them. California is going to sell carbon tax-credits to industries that cannot meet the environmental standards the state will be imposing in order to abide by these accords. All-in-all, this move is going to make it even harder and more expensive to do business in California.

Moving up the coast to the Peoples’ Republic of Seattle, they have done several “great” things of late. First, they raised the minimum wage to a ridiculous level, forcing many businesses to either shut down, move out of the city, lay off employees, and/or raise prices for their services and products. Then they cracked down on the right of Seattle citizens to own firearms and to purchase weapons and ammunition, again with the same result as with restaurants and other service-type businesses. Now they are imposing a 2.5% tax on individuals earning over $250,000 or $500,000 for couples.

Like Seattle, Chicago has some, if not the most restrictive measures on gun ownership by its citizens. Yet, despite that, it has the highest murder rate among major US cities. However, Seattle seems to think Chicago presents an outstanding role model for them to follow in this regard.

So, what makes me applaud these moves? Simply the fact that liberals have finally embraced the concept of federalism as espoused by our founders and how they envisioned the states would operate under our federal constitution. We are a country composed of what is supposed to be fifty independent, somewhat sovereign entities who are free to exercise all those powers not delegated to the federal government (which powers are few and defined as Madison wrote in the Federalist Papers). We have fifty free incubators to test measures to see what works and doesn’t work in the realm of governance.

So you want to limit your citizen’s access to guns for protection? Look how well that’s doing in Chicago. You want to impose draconian measures and taxes on businesses? Watch and see how many of them look to relocate to more business-friendly states. You want to force businesses to pay more than market rates in the labor force? See how many of your formally employed citizens come knocking on your city hall doors asking for welfare assistance. Watch your tax base dwindle as more wealthy individuals along with businesses more out of your city/state limits.

Yes, federalism is a fantastic concept! It teaches us what works best in preserving freedom and liberty, or in the cases I’ve cited in this essay, the absolutely worst and stupidest policies to pursue.

“No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Today, most individuals would consider this a “dead’ amendment, worthless, and in need of expunging from its place within the Bill of Rights. Many probably (out of ignorance of the time in which it was written) find it rather amusing that such a “trifling” matter was inserted into the Constitution. Let us then re-examine this amendment and see just how relevant it still is today.

Granted, we have no fear of soldiers being quartered in our houses, especially against our will, but that was not the case in colonial America. British rulers could and did order Americans (British subjects at the time) to house the King’s soldiers and provide them with meals, even if it meant they were turned out of their beds and went without food! Note that this was not an occupying foreign power forcing this upon the populace (such as the Germans forcing similar lodgings upon say French citizens in WWII), but rather a people’s own government perpetrating this action. So colossal was this imposition that the framers were determined to make certain that their new government would have severe limitations placed upon it in this regard.

Fine, you may say, but what does this have to do with us today? To begin with, the actual prohibition, whether we feel it so remote as to be impossible, is still in place. Yet if you “pull back the curtain” and look at the underlying principle, you can see just how important it is. In a number of essays, I have referred back to the principle of individual liberty, as enunciated by the 16th century political philosopher John Locke, that it is founded upon the security of individual property rights. Locke states that whatever we gain by the work of our hands belongs to no one else but us, and no one – including government – has the right to remove it from our hands without our consent. By forcing Americans to house these soldiers the British government was in effect plundering the private property of its own subjects – something Locke stated it had no moral authority to do.

Fast forward to today and consider my comments in the closing paragraph of my essay from last week (Income Taxes and Bridal Dresses). The EPA tells us what we can/cannot do with our property. Fail to pay your property taxes and see just how long you remain in your house before the government seizes it and evicts you. Fail to pay your income taxes – or at least what the IRS claims you owe – and you may be raided and your assets seized and sold out from under you at pennies on the dollar. Try to open up a business without first gaining a business permit from the government, or practice a profession you spent years acquiring the necessary knowledge needed, such as in medicine. All of these things our founders would be aghast at were they to come back to view their creation today.

Many know about the fourth amendment’s protection of our personal matters, but it is the third amendment which sets up this more expansive amendment following it, which constraints are also routinely shredded by our government.

Today, those less knowledgeable about the differences between rights and privileges go about chanting they have a “right” to this that or the other and yet miss the boat on the principle of what should be the shield for preserving our natural, inalienable rights. It is past time we revisit and elevate the third amendment to its rightful place of respect among the other nine amendments in our Bill of Rights and insist that Washington respect the limits it and the others place upon their power.

It has just now come to light that a few months ago, in Garland, Texas, 20 armed IRS agents swooped down upon a mom-and-pop bridal store owned by two elderly immigrants from Thailand and seized their entire inventory and equipment for alleged unpaid back income taxes. The designer dresses, valued at around $615,000 were sold for pennies on the dollar along with other assets such as sewing machines, a flat screen television, game console as well as the hat of Vietnam Veteran customer who had left it there to have some patches sewn on. The total net take for the IRS: around $17,000! As a result, this elderly couple is left destitute and out of business after 34 years of operation.

The authority upon which the IRS relied in this robbery is 26 CFR (Code of Federal Regulations) 301.6335-1, “Sale of Seized Property.” Note that this is not a law passed by the national legislature (Congress), but rather is part of the 80,000+ pages of “laws” promulgated by an unelected bureaucracy (IRS) which has both written “laws” (i.e., regulations) – a legislative act, interpreted how to apply these “laws” – a judicial act, and enforced these “laws” – an executive act. Clearly no separation of powers as designed by our founders in the Constitution.

Citizens of the United States are guaranteed the right to protection against such acts by our government: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (4th Amendment, US Constitution).

According to news reports, the IRS did obtain court authorization upon their presentation of an affidavit, but the broader question is “Was this ‘reasonable’?” If you read the complete set of guidelines of the CFR I referenced above, it appears the IRS violated its own protocols. Not only this, but in seizing some of the non-clothing items they seized items outside the court’s authorization, especially the hat that belonged to someone not involved in the tax dispute. If you or I do that, it’s called “theft of personal property” and we go to jail!

What is more outrageous is the speed with which this was carried out. According to the CFR there is supposed to be at least a ten-day period between serving notice of the pending sale and the commencement of the sale; but if the IRS believes that the items to be seized are “in jeopardy” of losing their value, the items can be sold immediately without any further due process. Designer bridal dresses “in jeopardy” of losing their value?? Seriously – weddings are going to cease and the dresses be of no worth unless disposed of immediately?

Clearly this action by the IRS costs us taxpayers much more than what they recovered by the sale of these assets. Furthermore, the tax returns for the years in question indicate that the couple had a carryover of a net operating loss, and thus no taxes would have been owed. Also, a memo written by an IRS supervisor obtained via the Freedom of Information Act issued a directive to agents to “shut down this failing business.” If freedom is to be preserved, this insidious income tax and the agency it gave birth to must go.

We are no longer free my fellow Americans. Unelected bureaucrats in these unconstitutional agencies (admittedly the IRS was created to enforce the 13th amendment) tell us what we can do with our property (EPA), what products we can produce (Dept. of Commerce), how much people must be paid by employers (DOL), how we are to obtain health care and related insurances (HHS), and how much disposable money from our earnings we’re allowed to keep (IRS). The government, via these bureaucracies, control our property, our businesses, our health and our incomes, and our representatives in Congress do nothing to stop them. You tell me – if the government controls these critical aspects of our lives (and there’s more), then how is it we can consider ourselves to be “free”?

When the Constitutional Convention of 1787 had completed their work on crafting what is now our Constitution, as the aged and feeble Benjamin Franklin was being helped away from Independence Hall where the delegates had been meeting, a woman called out to him “Doctor Franklin, what have you got for us?” His reply was classic – “A republic, madam – if you can keep it!”

There have been a number of republics down through the ages; one of the greatest was the ancient Republic of Rome. We all know how it was with the advent of Julius Caesar and the subsequent rise of Octavian (aka Augustus Caesar) that the Roman Republic was dealt its death blow and replaced with a monarchial form of government headed by an emperor.

In the movie Gladiator staring Russell Crowe, there is an interesting exchange between Crowe’s character Maximus, the honored general of the Roman army, and the aged and dying Caesar, Marcus. The conversation takes place in Caesar’s tent following a bloody but victorious battle. In the conversation, Marcus tries to convince Maximus to be his successor because his own son, Commodus, was evil and not fit to rule. Allow me to share some clips of their conversation:

MAXIMUS: You sent for me Caesar? [No response. Maximus turns to look at the weak and old Marcus.] Caesar?

MARCUS: Tell me again Maximus, why are we here?

MAXIMUS: For the glory of the empire, Sire.

MARCUS: Ah yes, ah yes. I remember. You see that map, Maximus? That is the world which I created. For 25 years, I have conquered, spilt blood, expanded the empire. Since I became Caesar I have known four years without war – four years of peace in 20. And for what? I brought the sword, nothing more.

MAXIMUS: 5,000 of my men are out there in the freezing mud. 3,000 are cleaved and bloodied. 2,000 will never leave this place. I will not believe they fought and died for nothing.

MARCUS: And what would you believe?

MAXIMUS: They fought for YOU and for Rome.

MARCUS: And what is Rome, Maximus?

MAXIMUS: I have seen much of the rest of the world. It is brutal and cruel and dark. Rome is the light.

MARCUS: Yet you have never been there. You have not seen what it has become. I am dying, Maximus. When a man sees his end he wants to know that there has been some purpose to his life. How will the world speak my name in years to come? Will I be known as the philosopher, the warrior, the tyrant. Or will I be remembered as the Emperor who gave Rome back her true self? There was once a dream that was Rome, you could only whisper it. Anything more than a whisper and it would vanish. It was so fragile and I fear that it will not survive the winter.

Maximus, let us whisper now. Together, you and I. You have a son? [Maximus nods.] Tell me about your home.

[Maximus looks a bit surprised at the invitation to hear of his home, but eagerly and proudly describes it — a peaceful happiness overcome him as he speaks.]

MARCUS: I envy you, Maximus. It is a good home. Worth fighting for? [Maximus nods yes and Marcus rises.] There is one more duty that I ask of you before you go home.

MAXIMUS: What will you have me do Caesar?

MARCUS: I want you to become the protector of Rome after I die. I will empower you, to one end alone, to give power back to the people of Rome and end the corruption that has crippled it. [Shock and bewilderment overcome Maximus. He tries to keep from displaying these feelings. Hearing no response, Marcus continues.] Will you accept this great honour that I have offered?

MAXIMUS: With all my heart, no.

MARCUS:[Tenderly holding Maximus’ head with both hands]: Maximus, that is why it must be you.

MAXIMUS: But surely a prefect, a senator, somebody who knows the city, who understands her politics….

MARCUS: But you have not been corrupted by her politics.

If you have seen the movie, you know that Commodus murders his father and assumes the title of Caesar. He attempts to have Maximus executed but Maximus escapes and ends up as a gladiator. As a gladiator he ends up fighting in the Coliseum in Rome, and in a one-on-one battle with Commodus, kills him and returns power back to the people.

In 2016 the citizens of this republic elected a non-politician to be our president because we were tired of the corruption of those who have worked their way up the political ladder that is our federal government. The appeal of Donald Trump to many was he had not been corrupted by the politics of “Rome” (Washington, DC) and pursued the office because of his perceived genuine love for his country and desire to make it great again.

Now, as President, he finds himself in what I would style as the role of a gladiator as well as president. He is constantly beset by and having to combat those who are corrupt in both political parties, the media and the elite intelligentsia of so-called “higher learning.”

Do I agree with everything President Trump has done? Absolutely not. Do I think he is firmly grounded on constitutional principles? Unfortunately no. But one thing I do know – he has the tenacity and courage of a gladiator, and with our republic on the brink of vanishing, we need someone who is not afraid to wield a sword in the arena of political combat.

In the 2016 election we had the choice between one in the mold of the corrupt and power-hungry Commodus and one who was not of the political class and was asked by the people to return the power of government to them so that like ancient Rome, America can once again be that shining light on the hill. Like him or not, President Trump could well turn out to be our Maximus.

This July 4 we will celebrate the 241st anniversary of the signing of the Declaration of Independence. Parades and concerts will be held, gatherings of family and friends for backyard cookouts will take place, and most citizens will enjoy a day off from work. However, if you have ever watched any of these “man on the street” interviews where individuals are asked what we celebrate on this day, far, far too many haven’t a clue. So as we enjoy this day, let’s reflect upon just what our forefathers put their lives, fortunes and sacred honor on the line to declare.

Some, but not enough, of these queried citizens about this day may be able to quote a phrase or two from the Declaration but there is a greater underlying principle to the Declaration than “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

You may wonder what greater principle can there be than the right to equality, life, liberty and happiness? The answer can be found in the opening sentence of the Declaration and repeated a little further down in the second paragraph.

In that first sentence Jefferson lays out the principle that Nature’s Laws and Nature’s God entitle people to be self-determining when it comes to how they will be governed. Listen to how he begins:

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them,…”

Jefferson here claims that people have the right “to assume the powers of the earth” which entitles them to choose with whom they wish to band together into society. He then proceeds in the second paragraph to expand upon this right by stating that the assuming of this power means they also have the right to determine how the society they formed when banded together is to be governed:

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

If a people are not free to choose how they wish to be governed then they live in a state of tyranny and oppression. As the song recorded by the Rascals in 1968 put it,

All the world over, so easy to see

People everywhere just wanna be free

Listen, please listen, that’s the way it should be

There’s peace in the valley, people got to be free

That same sentiment is inscribed on the base of our Statute of Liberty: “Give me your tired, your poor, your huddled masses yearning to breathe free.”

Without self-determination when it comes to governance, there can be no life to speak of for it is life without liberty nor happiness. Yet as far too many in our country today go about the frivolity of fireworks, concerts, et al, and are oblivious to the fact that we stand at the precipice of losing all that our forefathers declared are our inalienable rights that day 241 years ago.

It is time that we all re-learn the true meaning of this day and commit ourselves to the principles contained within that Declaration. Five years ago I woke up in the middle of the night and penned the following – a modern update to Jefferson’s Declaration. I hope you find it worthwhile and will share it with others that we might, like our forefathers, dedicate ourselves to the future freedom of our posterity:

The purpose of war is not to facilitate “nation-building”, nor is it to “spread democracy.” Unless a nation is a bent on conquest and subjugation, free nations engage in war only as a defensive matter of self-preservation. When it comes to self-preservation war is a matter of kill or be killed, and all options should be on the table as they were in WWII. Today we try to wage “polite war”, but no such thing exists. We are too concerned about political correctness in how we conduct military actions. War is horrible and should be resorted to only as a last measure due to the suffering it causes on both sides of the conflict.

My take on the approach to waging war is what I term the “Mr. Miyagi Philosophy of War.” In the movie “Karate Kid III”, the wise Mr. Miyagi has taken a young teenage girl named Julie under his tutelage. One evening while walking home alone she is accosted by a group of boys in a judo club and harassed. Off to the side you hear this soft, quiet voice say to them, “Leave girl alone.” They look, and begin laughing at and taunting this little old man telling them to back off. If you’ve seen the movie, you know that that little old man defeats all of the boys who run off with their “tails between their legs.” Julie gets all excited about how Mr. Miyagi “kicked butt”, and here is the wisdom in their conversation:

Juile: That was great, Mr. Miyagi.

Mr. Miyagi: Not great. Miyagi always look for way not to fight. Miyagi hate fighting, was most unfortunate.

Mr. Miyagi: Not want to kick anything. Was most unfortunate their butts attached to small brain.

Julie: Mr. Miyagi, come on admit it. We kicked some butt.

Mr. Miyagi: Julie-san, fighting not good. But if must fight… win.

As related to our subject matter, to paraphrase that last line, “War is not good. But if must fight…win!”

Consider what we did in WWII. On February 13, 1945, the allies fire-bombed the city of Dresden, Germany, killing an estimated 135,000 civilians (or more) in one night. On March 9, 1945, the US fire-bombed Toyoko, Japan and killed at least 130,000 civilians. Then of course there were the two nuclear attacks on Hiroshima and Nagasaki. The purpose was to try and force those nations to sue for peace and bring an end to the conflict and to preserve American and allied lives.

Today, in our war against those seeking to do us harm, in a formal declaration of war Congress should make it plain that as horrible as it may seem, we will unleash all of our might against those enemies and anyone who aligns themselves with them, shelters them, or remains in their vicinity may very well suffer the same fate as them.

General William Tecumseh Sherman understood how horrible war was, but it didn’t stop him from being ruthless in prosecuting it. I leave you with some of his words of wisdom about war and how to wage it:

“War is the remedy that our enemies have chosen, and I say let us give them all they want.”

“I would make this war as severe as possible, and show no symptoms of tiring till the South begs for mercy.”

“My aim, then, was to whip the rebels, to humble their pride, to follow them to their inmost recesses, and make them fear and dread us.”

“War is cruelty. There is no use trying to reform it. The crueler it is, the sooner it will be over.”

“War is at its best barbarism.”

“If the people raise a great howl against my barbarity and cruelty, I will answer that war is war, and not popularity seeking.”

“There’s many a boy here today who looks on war as all glory but it is all hell.”

And finally,

“Every attempt to make war easy and safe will result in humiliation and disaster.”

Would that more of our leaders had the attitude of General Sherman; then maybe there would be fewer American servicemen and women losing their lives and we as a people could dwell in peace and safety. As Mr. Miyagi said, “if must fight…win!”

We now understand that the power to declare war (see To Declare or Not to Declare, that is the Question – Part VI) can mean either to formally recognize that we are in a state of war after an adversary has attacked the US, or to formally announce that we intend to commence hostilities against an adversary. But against whom do we declare war? Just who is an “adversary” against whom war can be declared?

The meaning of what it is to be “at war” has been muddied up over the past few decades. We hear such phrases as “War on Poverty”, “War on Drugs”, the “Cold War”, and most recently, the “War on Terror.” I think that the reason we have not been as successful in recent military conflicts in which we’ve engaged is because we have lost sight of what war is all about and what it truly is.

The object of a declaration of war, if it is to be understood and carried through to victory, must be specific. In WWII, we declared war against Nazi Germany, Fascist Italy and the Empire of Japan. It was easy for the citizens at that time to focus on and crystalize exactly who we were at war with and what it was going to take to win and return to a state of peace. Yet the examples I gave above are nebulous to say the least. Is it any wonder that we don’t seem to be making much headway? We still have poverty after trillions of government spending/waste. The drug epidemic is spreading like a prairie fire, we’re still at odds with Russia despite the dissolution of the old Soviet Union, and the so-called “War on Terror”? Well……

I find all of these “wars” to be misnomers; an inaccurate use of the term and concept of “war.” Consider the “War on Terror.” Just who is the enemy? Some might say it’s ISIS, Al Qaida, the Muslim Brotherhood, etc, but that is not the enemy we’ve tied to the use of the word “war.” Terror is a means to an end, and therefore cannot be an enemy against which you declare war. Winston Churchill did not declare war against Blitzkrieg when Poland was invaded. No, he asked the British Parliament to declare war against Nazi Germany, the adversary who was utilizing the method of Blitzkrieg to attack a neighboring country. So it must be with us today in how we approach this Muslim menace today.

President Trump should go to the Congress and ask for a declaration of war against the organizations who are perpetrating terror around the globe. The declaration should state that we have been attacked by these adversaries over the years (the Marine Barracks in Lebanon, the USS Cole, the WTC buildings to name a few) and that we will take whatever means necessary to eradicate them. By making this formal declaration it should also put other nations on notice that should they harbor, aide or abet these organizations they will also be considered to be adversarial to our safety and will be subject to incurring whatever damage and suffering might result when we attack these groups that are within their territory. In effect, we are declaring to be at war with them in an indirect manner. This way they are on notice and if they fail to take action themselves to root out those organizations, then the consequences will be on them, not on the US.

To fail to realize exactly who we are at war with and formally stating such will keep us in the condition we have been for the past almost three decades, namely mired down in politically correct battles with no clear victory or peace in sight. Next week, a look at what war really is and how it should be waged.

Having examined (in the previous five installments of this series of essays) the background and the constitutional positing of the power to declare war in the hands of the legislature, we can now look at answering the question “What did the founders mean by the phrase ‘declare war’?”

There are two basic schools of thought on its meaning. One is to declare war is simply a formal announcement to the world that the US is in a state of war with xyz country(ies) – that is the war is already in existence. This would be the case with FDR’s call for Congress to declare war on the Empire of Japan after its attack on Pearl Harbor. The other interpretation is that Congress has the power to initiate war – to put a country(ies) on notice that the US considers itself to be on a war footing with them and will commence hostilities against them. The follow up question is then, which is it? Interpretation one, or two, or perhaps both?

In trying to define something it is many times helpful to look and see if the same concept has been expressed in other places using different words or phrases. If we take this approach it will help us to understand the founders’ frame of mind and in grasping what they intended when they wrote in the Constitution that “Congress shall have the power to…declare war.”

In the Articles of Confederation, written by many of the same men who later wrote the Constitution, three different phrases were used. In Article VI, the Congress was given the power to “engage in any war,” and to make “a declaration of war.” In Article IX it stated that congress “shall have the sole and exclusive right and power of determining on peace and war.”

In the original draft of the Constitution, in listing the enumerated powers of the legislature in Article VII, it had the simple phrase “to make war.” Going back to Madison’s essay of August 24, 1793, writing under the pseudonym “Helvidius” (see part III of this series, To Declare or Not to Declare – Part III), Madison used the terms “make war” and “declare war” interchangeably.

Putting this all together I think we can draw these conclusions: to “engage” in war doesn’t really tell us whether the engagement is preemptive or reactive. The same can be said of the idea of “determining” war. Both of those terms are rather ambiguous in clarifying the idea of “declaring” war. This leaves us with the term “make” war as an alternative to “declaring” war.

In that same part of Madison’s essay I referred to above, he related the act of making or declaring war to be the same as congress making law. So we ask, “What is implied by the phrase ‘making law’?” This simplifies the matter significantly as it is easily understood that to make something is to create that which before did not exist. There is no law until Congress legislates, creates or makes the law. Hence, the US cannot be in a state of war until Congress “makes” it so.

Thus, I believe that we can safely conclude that declaring war can be a determination that a state of war exists (such as after Pearl Harbor) and that Congress formally declares to the other nations such to be the case and authorizes the President to use our military forces to “engage” in armed conflict. Or it can also mean that Congress can declare war by making war, i.e., initiate hostilities with another nation where previously no open hostilities existed.

Hence, to “declare war” can be reactionary, i.e. a defensive statement after being attacked, or it can be an authorization to commence an act of war against another nation. Either way, however, as I’ve shown in this series of essays, that power rests solely with Congress and cannot, constitutionally, be consigned to the determination of one man/woman occupying the office of the President.

Next week, in what I expect will be the final installment in this series, we will examine who it is that Congress can declare war against and what should be done regarding this “war on terror.”

Going to war is a serious business – deadly serious, which is why our founders in their great wisdom posited the authority to commence war in the hands of those who represented the citizens who would have to finance, fight and die in it. As I mentioned in closing last week (http://frankkuchar.com/348-2/), going to war not only requires the legislature to declare it, but also the concurrence of the President as well. This not only creates a separation of powers, but a second backstop against a headlong rush into an unwise war.

We have had many wars in our history of, which only five were congressionally-declared wars (six if you separate out our declaration of war against Romania in 1942 from the declaration in 1941 against the Axis powers with which Romania was allied), and only one of them was an actual declaration to go to war – the other four were in response to our having been attacked. Until recently, all of these military engagements were viewed as “war”; now, however, they have been also referred to as “police action” or simply “conflict.” However, to those who fought, bled and died in them, they were wars. Two such wars that were called such were the Korean and Vietnam Wars.

In the aftermath of our disastrous war in Vietnam (which was an undeclared war), Congress passed the War Powers Resolution of 1973 in an effort to restrict the President’s ability to commit US forces into battle without first getting congressional approval. It is an unnecessary, useless and dangerous act and cuts across the grain of the intent of the Constitution to vest war-making powers in the hands of the legislature.

The resolution gives “statutory authorization” for the President to commit US forces into a military engagement or if there is “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” It requires him to notify Congress within 48 hours of his action and that those forces he has committed may only remain in the battlefield for 60 days (plus an additional 30 days for withdrawal) without securing additional congressional approval or formal declaration of war.

This resolution is foolish and dangerous on two grounds. First, it cuts against the intent of the Constitution by allowing this broad, nebulous “statutory authorization” to in fact decide to go to war. To declare war means there must be an enemy against whom this declaration is made – there cannot, constitutionally, be this vague, blanket “statutory authorization” for the President to use our military when and how he sees fit! Second, once the President decides, without a formal congressional declaration of war, to let our military loose in some part of the world, his action could turn into a full-blown conflagration, and then Congress would have to declare a formal state of war, even if it didn’t want to. In effect, this strips away the separation of powers our founders intended in this gravest of acts.

Furthermore, it is unnecessary in that the President fulfills the role of the Commander-in-Chief, meaning he calls the shots with the military when we are at war. He cannot, constitutionally, unless we are attacked and immediate response is required for our defense, go off on his own and launch us into a military conflict (which, remember, for those fighting it is a war). Since he is already limited by the Constitution in Article I, Section 8, Clause 11, there is no need for this resolution.

Those who are elected to the office of the Presidency need to be reminded of their limitations and Congress needs to step up and take back their authority as our founders intended. If this was to occur, then perhaps much bloodshed and needless suffering and expense could be prevented.

In the previous installment in this series (To Declare or Not to Declare, that Is the Question – Part III), I established the fact that, based upon James Madison’s arguments in an essay dated August 24, 1793 under the pseudonym “Helvidius”, the constitutional authority to “declare war” was reserved to the legislature as this action was tantamount to the passage of a law. Consequently, the president is not authorized to “declare war” on his own any more than he has the authority to enact any other piece of legislation. His role, Madison argued, is strictly that of execution, and unless he is given something to execute (i.e., law), he has no authority.

This being the case, how then does Congress “declare war”? The Constitution is silent on the procedure, but if we proceed from Madison’s supposition that declaring war is a legislative act, then we can safely assume it would follow the course of any other passage of legislation.

As I closed last week’s essay, I pointed out that to declare war requires the action of both houses of Congress, just like the passage of any other law. However, unlike the requirement that all bills relating to raising revenue (i.e., taxes) must originate with the House of Representatives (Article I, Section 7, Clause 1), no mention is given concerning in which chamber such a declaration must originate. This being so, we can assume that it can originate in either chamber. An argument could be made, again extrapolating from Madison’s argument, that since the conclusion of a war via treaty requires action on the part of the Senate, meaning that war cannot be ended without Senate approval, we could say that a bill to commence war would then originate in the Senate, but I believe that might be stretching a little too far. After all, the independence of the States might be at risk in the going to war, but it will be the citizens who will bleed and die, so an equally strong argument could be made that it should originate in the House. However, the safest conclusion is that a bill to declare war can originate in either chamber of Congress.

Once a bill to declare war is passed according to the rules set forth in each chamber, to be official it would then, like any other act of legislation, require the signature of the President. Once signed, then – and only then – would he, as the Commander-in-Chief, have the authority to lead the military forces of the country into war.

But, what if the President said that in his opinion, Congress was full of a bunch of hot-headed war hawks, and that to go to war would be foolish and dangerous and he refused to sign the bill or follow its directives? Could he do this? Would that become an act of treason and be an impeachable offense? The answers are yes he could, and no it would not be an impeachable offense. If the act of declaring war is just like any other piece of legislation, then he can veto it like any other bill, which would then require a 2/3 vote of both the House and the Senate to become law. Once his veto was overridden, then yes, he would be obligated to follow through or be in violation of his oath of office.

Herein we see the wisdom of our founders in their ingenious insertion of checks-and-balances in our system of government. One individual, the President, cannot put the country at risk by declaring war on his own, but neither can a foolish bunch of Senators and Representatives unless the one who will be in command of the battles agrees. More on this next week.